King

Information for burglary, alleging also two prior convictions of burglary of the second degree. Defendant was found guilty by the jury and appeals from the judgment of conviction and from the order denying his motion for a new trial.

The transcript contains the following entries:

The cause came on for trial October 27,1902, and out of the hearing of the jury panel the district attorney withdrew one of the two charges of prior conviction; The minutes of the court then show:

It is claimed by defendant that it was prejudicial error for the court after arraignment (Pen. Code, sec. 1003) to call upon defendant to plead to the charge of prior conviction; that the court exceeded its authority, there being no statute authorizing the court to ask-the defendant whether or not he had suffered a previous conviction; that the particular offense and the previous conviction constituted one charge, a plea of not guilty to which puts in issue every material allegation therein contained, and that the plea of not guilty, first offered by defendant, was the only one admissible under section 1017 of the Penal Code and that he had a right to rest upon that plea and could be convicted only by a…